Mr. Sumner moved to reduce the tax from twenty to ten per cent, but, at the suggestion of Mr. Fessenden, Chairman of the Finance Committee, consented to fifteen per cent, which was adopted. The amendment failed between the two Houses.

The bill as it came from the House had a proviso, "That all imported cotton and linen rags for the manufacture of paper shall be free of duty." Mr. Sumner made an ineffectual effort to prevent this from being struck out. In the course of his remarks, he said ::

Here is another tax on knowledge. On the face it is a tax on rags; but rags are imported to make paper; so that a tax on rags is a tax on paper, and as such is a tax on knowledge.

SUUT

PUBLIC LIBRARY,

DISCARDED.

CONSTITUTIONAL QUORUM OF THE SENATE.

SPEECH IN THE SENATE, ON A RESOLUTION DECLARING THE CONSTITUTIONAL QUORUM, JULY 12, 1862.

ACCORDING to long-continued usage, a quorum of the Senate was a majority of the whole number of Senators, assuming each State represented by two Senators. After the withdrawal of the Rebel Senators, business was often embarrassed from the failure of what was supposed to be the constitutional quorum. To remove this difficulty, Mr. Sherman, April 11th, introduced the following:

"Resolved, That a majority of the Senators duly elected and entitled to seats in this body is a constitutional quorum."

July 12th, Mr. Sumner said:

MR.

R. PRESIDENT,- What is a quorum depends upon the Constitution; but we approach its consideration with the knowledge that in England, the original home of our institutions, and especially of Parliamentary Law, the question, for a long period anterior to the National Constitution, was fixed by usage. Indeed, usage is authority for the larger part of the English Constitution. But in this case of a quorum the usage is liable to alteration. In his elaborate work on the Law and Practice of Legislative Assemblies, the Parliamentary Law on the subject is thus stated by Mr. Cushing:

"In the British Parliament, according to the ancient and invariable usage of the two Houses, as evidenced by their

rules, three is the number necessary to constitute a quorum of the Lords, and forty a quorum of the Commons. These numbers, respectively, although established by and dependent upon usage merely, and within the power of each House to abrogate or change at any time, have, nevertheless, the force of standing orders; that is, they are equally binding upon every succeeding Parliament until abrogated, and do not require to be specially adopted in order to be in force." 1

It will be observed that the quorum of the Commons, numbering six hundred and fifty-four persons, is only forty, and this number appears to have been recognized as long ago as 5th January, 1640. At an earlier day more than sixty was required, and as late as March 18, 1801, an attempt was made in the Commons to revive this ancient rule, but it failed. For a short time in 1833 and 1834 the quorum for private business was twenty.2

The quorum of the Lords, numbering four hundred and sixty-five, is only three. A spectator at the law sessions of the Upper House is struck by the appearance of the Lord Chancellor on the woolsack, in wig and gown, listening to arguments, with two lay lords, like two lay figures, on the side benches, merely to constitute a quorum so as to legalize the decision of the Chancellor. The origin of this quorum, having the sanction of unbroken usage, is lost in the night of Antiquity. It is probably founded on the ancient maxim of the Roman Law, Tres faciunt collegium, "Three make a college," — the latter word being equivalent, in some respects, to our word corporation.

Thus, according to Parliamentary Law, two things

1 Law and Practice of Legislative Assemblies, § 248, pp. 95, 96.

2 Ibid., § 248 and note.

appear: first, the quorum of each House is within the control of the House; secondly, it is now, and always has been, in each House, much smaller than a majority.

With us the quorum, in general terms, is fixed by the Constitution. It is not left to usage, or the control of each House; but it is reasonable to infer that any question on the meaning of the Constitution, arising from generality of language, may be interpreted in the light of Parliamentary Law. Indeed, this is only according to the rule under which all technical words in the Constitution are interpreted. For instance, words known to the Common Law or to the English Chancery are interpreted according to the Common Law or the English Chancery. Mr. Wirt, in his admirable argument on the impeachment of Judge Peck, states the rule in these words: :

"The Constitution secures the trial by jury. Where do you get the meaning of a trial by jury? Certainly not from the Civil or Canon Law, or the Law of Nations. It is peculiar to the Common Law; and to the Common Law, therefore, the Constitution itself refers you for a description and explanation of this high privilege, the trial by jury, and the mode of proceeding in those trials. I insist, that, the moment that a Court of Common Law or a Court of Equity is established under the authority of the Constitution, its modes of proceeding and its powers of self-protection arise with it, and that the very name by which it is called into being authorizes it to look at once to the English archetypes for its government in these particulars." 1

....

According to this rule, so clearly enunciated, the words "quorum" and "House," which are derived from Eng

1 Stansbury's Report of the Trial of James H. Peck, Appendix, p 499.

lish Parliamentary Law, may be explained by that law; so that, in case of doubt, that law is for this purpose embodied in the Constitution. Now the Constitution declares that a majority of each House shall constitute a quorum to do business. The rule, it will be observed, is the same for each House. But the question arises, What is a majority of each House? or rather, putting aside all question with regard to the House of Representatives, which is perfectly free to determine for itself, What is a majority of the Senate?

In fixing the quorum at a majority rather than any smaller number, our Constitution followed the law of business corporations, where a majority always prevails, according to an old maxim of the Common Law, — Ubi major pars est, ibi est totum, "Where the greater part is, there is the whole." This rule is so reasonable, that it has been vindicated by an eminent authority as founded on the Law of Nature. Here are the words of the great jurist Savigny :

"The will of a corporation is not merely the concurring will of all its members, but even that of the greater number. Therefore the will of a majority of all its existing members is to be regarded as being properly invested with the rights of the corporation. This rule is founded on the Law of Nature, inasmuch as, if unanimity were demanded, will and action on the part of a corporation would be quite impossible. It is also confirmed by the Roman Law."1

Thomas Jefferson, a very different person from the German jurist, has also vindicated the rule.

"The Lex majoris partis is founded in Common Law as well as common right. It is the natural law of every as

1 System des heutigen Römischen Rechts, Band II. p. 329, § 97